Present complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date has been filed by M/s Kailash Rice Mills Pvt. Ltd. through its Managing Partner Sh.Vipan Kumar complainant against opposite parties i.e. National Insurance Company Ltd. Sultanpur Road, Kapurthala through its Manager and also M/s Dhan Dhan baba Deep Singh Ji Transport Company, G.T. Road, Amritsar, through its Proprietor seeking direction against them to pay an amount of Rs. 5,84,583/- including interest on the insured amount for loss of rice bags and also for monetary compensation on account of mental tension and physical harassment due to deficiency in service on the part of opposite parties.<br /> 2. Brief facts of the complaint lie in a narrow compass. Sh.Vipan Kumar is the Managing director of complainant firm. Complainant firm took a Marine Cargo Open Declaration policy bearing No. 401111/21/06/4400000021 from opposite party No.1 for rs.2,50,00,000/- w.e.f. 15/12/2006 to 14/12/2007 in which premium was paid in advance to opposite party No.1. It is averred that on 13/3/2007 complainant firm sent a truck filled with 430 bags of rice to Navi Mumbai on truck No.HR63-A-1454 for value of Rs.2,82,729/- and on 14/7/2007 sent another truck filled with 430 bags of rice to Ahmedabad on truck No.HR63-1135 for value of Rs.2,35,585/- through its Transporter opposite party No.2. Complainant also sent declaration forms of insurance bearing No. 8576 and No.8579 of the abovesaid consignments to opposite party No.1 duly covered under the Marine Insurance Policy. It is alleged that both the trucks had not reached its destination and that complainant firm sent two registered letters dated 24/3/2007 to SHO, P.S. sadar, Kapurthala and lodged FIR bearing No.53 dated 24/4/2007 imder section 406/420/120-B IPC against the drivers namely Kuldip Singh and Shamsher Singh. Complainant firm lodged two claims with opposite party No.1 vide two intimation letters dated 30/3/2007. Opposite party NO.2 was also asked reason for not reaching the trucks to its destination and to pay price of rice to the complainant in the event of non delivery of consignments. In response to these letters, opposite party No.2 issued two certificates to the complainant to the effect that consignments have been misappropriated by the drivers of the trucks of their Transport Company denying their responsibility which is illegal as opposite party No.2 is liable for the delivery of the consignments entrusted to them by the complainant. On the other hand on 11/2/2007 P.S. Sadar also issued non traceable certificate as they were not able to locate the missing consignments. The onsigne Companies namely M/s Rushabh Trading Company, Navi Mumbai and M/s Raj Kumar Sham Lal, Ahmedabad had sent three reminders certifying that consignments had noi been reached to them. Complainant firm also received a letter from Investigating Agency appointed by the Insurance Company for supply of certain documents which were duly sent and that Insurance Company was asked to pay legitimate claim of the complainant but inspite of paying the insurance claim, opposite party Insurance Company gave wrong and irrelevant reply which amounts to deficiency in service against which complainant is entitled to the reliefs claimed.<br /> 3. Opposite party No.1 appeared, controverted the allegations of the complainant and resisted its claim.. Certain preliminary objections have been raised that complaint is not maintainable as Sh.Vipan Kumar is not duly authorized person to file the present complaint. On merits factum of insurance of the consignments from the Insurance Company by the complainant firm after paying premium vide Marine Insurance policy with effect from 15/12/2006 to 14/12/2006 is not disputed. However Insurance Company has alleged that false and fictitious claim has been preferred by the complainant firm in connivance with the transporter dishonestly and fraudulently because trucks were hired by the complainant firm from opposite party situated at Amritsar and that two certificates from the transporter were allegedly procured on the plain paper and not on the letter-head pad and blank G.R. was allegedly sent to the complainant firm by the Transport Company and complainant had itself filled up the same which also bare cuttings. Therefore, it is pleaded that since alleged consignment was sent without verifying antecedents of the driver/owners and its registeration number and as such loss, if any, caused due to negligence of the complainant in connivance with the Transport Company. In fact no consignment was ever sent to Navi Mumbai or Ahmedabad. No non-traceable certificate was issued by the Police nor the Police was competent to issue the same. . FIR was also registered against drivers namely Kuldip Singh and Shamsher Singh without involving the Transport Company . Therefore, there is no question of any deficiency in service on the part of opposite party No.1 and the insurance claim of the complainant was rightly repudiated.<br /> 4. Opposite party NO.2 Transport Company also appeared, controverted the allegations of the complainant and resisted its claim<br /> The main defence plea of the opposite party No.2 Transport Company is that both drivers namely Kuldip Singh and Shamsher Singh were never their employees nor they were deputed to carry the consignment to Ahmedabad in Truck No. HR63-1135 and Truck No.HR63-A-1454 to Navi Mumbai not owned by them. Moreover untraceable report was given by the Police during the investigation and that Police in connivance with the complainant got signatures of opposite party No.2 on the blank paper. Therefore, Transport Company is not at all liable to any compensation as goods were never booked with them by the complainant firm.<br /> 5. In support of his version complainant firm has produced in evidence affidavit Ex.CA and documents Ex.C1 to C48.<br /> 6. On the other hand opposite party No.1 produced in evidence affidavit of Nand Kishore Branch Manager Ex.OPA and documents Ex.OP1 to OP11.<br /> 7. Opposite party No.2 produced in evidence affidavit of Gurmail Singh Ex.OPB.<br /> 8. We have heard arguments of learned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for the complainant has vehemently urged before us that Insurance Company and Transport Company are both guilty of woeful deficiency in service for their dismal failure to not only transporting the consignments to its destination safely but also repudiation of their legitimate claim of insurance for the loss of rice bags worth Rs. 2,82,729/- and Rs.2,53,585/- without any justifiable reason. On the other hand it has been counter argued by learned counsel for the Insurance Company that Insurance Company is not liable to pay any compensation for the alleged loss of consignment as the claim was filed by the complainant in connivance with the Transport Company fraudulently and there was no deficiency in service on the part of opposite party Insurance Company. Counsel for the Transport Company opposite party No.2 also denied its liability on the sheer plea of non existence of relationship of consignor and carrier because goods were never booked with them and transported in the trucks as alleged by the complainant.<br /> 9. We have considered rival contentions of counsel for the parties. We find a good deal of merit in the contentions of learned counsel for the complainant. Insurance Company has not disputed the insurance of consignment of goods on payment of premium by the complainant under Marine Cargo Open Declaration policy Ex.OP10 and OP11 for the period from 15/12/2006 to 14/12/2007 and as per clause (1) of the said policy, insurance covers all risks of loss or damage to the subject matter insurance except as provided under clause (2), (3) and (4). In order to substantiate the plea of loss of two consignments of 430 bags of rice to Navi Mumbai in truck No. HR53-A-1454 for value of Rs.2,82,729/- on 13/3/2007 and another truck No. HR63-1135 to Ahmedabad on 14/3/2007 for value of Rs.2,63,585/- through opposite party No.2 Transport Company. Complainant firm through its Managing Director Vipan Kumar deposed vide affidavit Ex.CA that firstly he is duly authorized by the complainant firm vide resolution Ex.C2 to initiate the legal proceedings and that these trucks were driven by Shamsher Singh and Kuldip Singh and to this effect G.R. No. 108 dated 13/3/2007 and GR No.109 dated 14/3/2007 Ex.C6 and C7 were issued by the Transport Company. The declaration form of insurance bearing No. 8576 and 8579 of the said consignments vide Ex.C8 and C9 were immediately sent to the Insurance Company duly covered under the said Marine insurance policy. He has also proved lodging of the complaint vide Ex.C10 dated 24/3/2007 and Ex.C12 dated 24/3/2007 with SHO PS sadar Kapurthala and FIR vide Ex.C14 dated 24/4/2007 under Section 406/420/120 B IPC against drivers of the Transport Company alleging therein sequence of the events leading to the pilferage/loss of consignment. He has also proved intimation about loss of goods to the Insurance Company vide Ex.C15 and Ex.C16 dated 30/3/2007 and also to the Transport Company vide Ex.C17 and Ex.C19 and acknowledgment receipts Ex.C 21, 22 for non delivery of consignment and two certificates Ex.C23 and Ex.C24 purported to be written by Gurmail Singh of Transport Company have also been produced wherein it was admitted that consignments were misappropriated by the drivers of the Transport Company and as such they are not at fault. Complainant firm further produced in evidence non traceable certificate dated 11/10/2007 Ex.C25 by the Police to this effact that no clue was found. There are letters Ex.C26 dated 26/3/2007 and Ex.C28 dated 24/4/2007 and Ex.C28 dated 28/6/2007 issued by the consignee M/s Rushabh Trading Company, Navi Mumbai. Letter of firm M/s Raj Kumar Shyam Lal Ahmedabad Ex.C29 dated 20/3/2007 Ex.C30 dated 30/3/2007 and Ex.C31 dated 20/4/2007 about non receipt of consignment. Investigating Agency was also appointed by the Company to investigate the case about genuineness of the incident and that Investigating Agency sought certain inquiries and also documents from the complainant firm.which were duly replied and furnished vide letter Ex.OP2 dated 30/7/2007 and fairly admitted that G.R. of the Transport Company was filled up by them and that they have been hiring trucks from different stations for the purpose of carrying consignments to different States. <br /> 9. Much has been alleged by learned counsel for the opposite party No.1 that insurance claim was filed by the complainant in connivance with the Transport Company fraudulently. We do not find any substance in this plea because no such credible evidence has been produced either by the Insurance Company or by the Transport Company to establish their respective allegations that complainant had joined hands with the Transport Company or that complainant was in connivance with the Police and procured signatures of Proprietor/Partner of Transport Company on blank paper during investigation. The factum of filing repeated complaints to the Police about loss/pilferage of the consignments during transit by two drivers of the Transport Company and resultant FIR and further sending intimation of claim to the Transport Company vide Ex.C17 and C19 and also repeated intimation of non receipt of consignments by the consignee vide Ex.C28 to C31 and further two certificates Ex.C23 and C24 by Gurmail Singh of Transport Company acknowledging the transportation of trucks filled with rice bags through their driver Shamsher Singh to Ahmedabad and untraced report by the Police vide Ex. C25 and further intimation of the consignment to the Insurance Company vide Ex.C8 and Ex.C9 giving description of their consignee and also the trucks and further declaration vide Ex.C42 to C46 to the Insurance Company and furnishing of the documents required by the Insurance Company vide Ex.C38 dated 14/1/2008 and Ex.C39 dated 18/1/2008 and also reply Ex.C41 dated 14/2/2008 by complainant firm to the Insurance Company speak volume of genuineness of the claim for loss of consignment during transit. There is also nothing on the record to smack of any ill will grudge or enmity of complainant against the Transport Company for its false implication and lodging of any false claim.Transport Company cannot wriggle out of its liability as a carrier of goods on the sheer plea that neither two drivers were employed by their Company nor trucks were owned by them. He cannot disown two GRs Ex.C6 and C7 whereby consignments were entrusted to them for its carriage to Ahmedabad and Navi Mumbai on mere plea that these were not issued by their Transport Company or that dates were corrected. Had the signatures of the Transport Company's office bearer been taken forcibly on the blank document or false GR produced by the complainant firm to implicate Transport Company falsely, its owners/Prop. would have resorted to remedial steps but no action was taken by the Transport Company for reasons best known to it. <br /> No doubt, Insurance Company through its Investigating Agency sought certain inquiries and also documents from the complainant firm vide Ex.OP2 dated 30/7/2007 which were duly furnished and explanation given but strangely enough no categorical finding about falsity of its claim by said Investigating Agency was given to repudiate claim of the complainant firm. Rather Insurance Company sent letter dated 14/10/2008 Ex.C38 to the complainant firm for the first time at belated stage requiring certain documents which too were furnished. Therefore, in our considered opinion, voluminous evidence produced by the complainant firm about consignment of rice bags to the consignee/addressee at Navi Mumbai and Ahmedabad and its pilferage/loss by the Transport Company through its drivers and its timely intimation not only to the Transport Company but also to the Insurance Company firmly establish deficiency in service on the part of carrier of goods and also Insurance Company. Defence plea of the Insurance Company to wriggle out of its obligation to comply with terms and conditions of the insurance policy under clause 2 if General Exclusion Clause is not convincingly established that the loss/damage or expense was attributable to woeful misconduct of the insured as defined in the policy Ex.OP11.<br /> In the ultimate analysis of aforesaid discussion, we accept the complaint and direct the Insurance Company opposite party No.1 to reimburse Rs.2,82,000/- and Rs.2,53,000/- total <br /> Rs. 5,35,000/- value of two consignments with interest @ 12% p.a. from the date of lodging of the complaint i.e. 26/4/2007 till realisation and cost of litigation of Rs.3000/-.within one month from the receipt of copy of this order. . However it is made clear that Insurance Company shall have all rights and benefits of the insured for the recovery of goods and losses qua carrier/Transport Company by way of assignment under clause 7 of Marine insurance policy Ex.OP11.<br /> Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced : ( Surinder Mittal ) ( A.K. Sharma )<br /> 29.5.2008 Member President.